JSC backs Ramaphosa pick Molemela to head Supreme Court of Appeal

The Judiciary Service Commission (JSC) on Monday grilled the only candidate for the Supreme Court of Appeal president, Mahube Molemela. who was recommended for the position by President Cyril Ramaphosa.

Soon after the interview, the JSC concluded that Molemela should be appointed to the position — the third most powerful in the country after the chief justice and his deputy — and would be advising  the president accordingly.

Molemela came to the interview highly recommended.

The General Council of the Bar (GCB) noted that she has a “deep and thorough knowledge of the law, including constitutional law” and “has a long professional history.”

Serving as the first female judge president of the Free State high court, having dissenting judgments upheld by the Constitutional Court — where she later acted — her appeals court experience, all but made her an ideal choice for the position.

Chief justice Raymond Zondo kicked off Molemela’s interview by assuring her that she will be treated fairly, and “[there’s] nobody here who has come with an intention to show you disrespect ... or to treat you unfairly.”  Zondo’s comment appeared to be a reference to the previous sessions, where commissioners were accused of using their positions to relitigate matters that had appeared before candidate judges, raised irrelevant issues and ambushed judges with accusations.

In her address, Molemela noted that after the leadership of  former SCA president and now deputy chief justice Mandisa Maya, the appeals court had become “a well-oiled machine”. However, she said, there was “always room for improvement”.

She highlighted a lack of research support staff, which she aimed to address.

Molemela also outlined several key priority areas such as fostering collegiality, which she said was central to all appellate courts, the allocation of scribing duties for all judges and the optimisation of acting appointments.

SA has history of undermining women in legal spaces, she said, noting how major institutions were part of “legitimising patriarchy” in law. As part of the transformation project the arose from the constitution, she would be using her role to promote and help transform judicial leadership in terms of gender parity.

Her appointment could potentially be of what the GCB called “a continuation of the effort to ... attain an appropriate racial and gender composition” in leadership positions in the judiciary, especially alongside Maya’s appointment as the first female deputy chief justice.

Her colleague and current acting president of the SCA, Xola Petse, noted that she was not the most senior judge at the SCA and, with her appointment, she had “leapfrogged” several more senior colleagues.

Molemela answered that this was not unusual, noting Petse himself, was an example of being appointed to deputy president over more senior colleagues — as was former SCA president, Lex Mpati, to president of the SCA over more senior colleagues.

She also noted numerous messages of support from the majority of the SCA and retired justices.

China Dodovu, of the National Council of Province, was curious about Molemela’s impression of the commission itself. Molemela said that after last year’s complaints, the JSC had outlined criteria it would consider regarding appointment of judges, which would help constrain commissioners’ questions. So she had no complaints.

Gratitude Magwanishe, the chair of the portfolio committee of justice & correctional services, asked about Molemela’s vision for the SCA.

She replied: “[The] SCA continues to perform optimally. It is the lodestar at the moment and many courts look up to it. And on many occasions, [it’s been called] the seat of jurisprudential excellence.” Her intention “is to keep it that way”.

Molemela was asked by Wits professor Clement Marumoagae about the SCA being technologically behind some other courts, most notably the Gauteng divisions. She agreed, saying it negatively impacted on access to justice. But she assured the commission that the office of the chief justice had taken steps “to increase the bandwidth” regarding the SCA’s network. This would allow for proper electronic functioning, as was demonstrated during Covid-19.

Several senior advocates engaged her on matters of practice and Molemela noted their concerns and frustrations. Advocate Carol Steinberg, for example, conveyed concerns about a lack of commercial knowledge on the benches. which Molemela said  could be alleviated with acting appointments.

moosat@businesslive.co.za